News flash for the media: You can’t sell photos grabbed from Twitter

Agence France-Presse will go to trial for using famed Haiti earthquake photos.

When Haiti was devastated by an earthquake in early 2010, not many professional-quality photos of the disaster were immediately available. Haiti is one of the poorest countries in the world; before the quake, very few journalists were stationed there.

It became one of the seminal events in which Twitter showed that it could fill the void, and its value quickly became apparent to media companies. But the use of photos found on Twitter during that disaster by one newswire, Agence France-Presse, turned into a confused morass of erroneous bylines and ultimately, copyright litigation. Daniel Morel, a photojournalist whose photos were placed on the AFP newswire without payment, turned to the courts in March 2010, claiming AFP had violated his copyright. AFP responded with a few different defenses; its boldest, almost shocking defense was that the Twitter terms of service actually granted it a license to use whatever photos it could grab off the micro-blogging service.

The AFP v. Morel lawsuit was widely reported because it was one of the first cases to explore the intersection of copyright law and Twitter's terms of use. Today, nearly three years after the lawsuit began, a key opinion [PDF] has been issued, ruling in favor of Morel and against AFP. The French newswire did manage to win a limitation on damages, but it could still be liable for hundreds of thousands of dollars.

A brief history of some instantly iconic photos

Daniel Morel took several photos on the day of the earthquake and posted them to Twitter using TwitPic, explaining they were available for purchase. His photos were illegally copied, however, by Lisandro Suero, a resident of the Dominican Republic who claimed them as his own and sold them to AFP. The French newswire then shared the photos with the Getty photo service—a common practice for AFP, which has a licensing deal with Getty and gives Getty about 1,500 to 2,000 photos each day, according to court documents. The photos were distributed worldwide and became "iconic," as Morel's lawyer later wrote.

The photos got the attention of a lawyer at Corbis, a photo agency that competes with Getty. Morel, an experienced Haitian-American photographer, had signed on with Corbis as his exclusive licensing agent, and the Corbis lawyer wanted to know why she was seeing photos in the world's newspapers that had bylines reading "Daniel Morel/AFP/Getty Images."

What followed was a complete mess, as AFP and Getty both tried to put the proverbial genie back in the bottle. AFP deleted all Morel photos off its servers and sent out a "kill notice" about the photos, reading:

"MANDATORY KILL == MANDATORY KILL == MANDATORY KILL -- Due to a recent copyright issue, we kindly ask you to kill from all your systems Daniel Morel Pictures from Haiti. We are sorry for any inconvenience; thank you for your cooperation."

Getty reported deleting 24 Morel "assets" from its servers, and the "kill notice" was sent on to Getty's customers. However, not all of the Morel photos came down. They were hard to find, especially since some were running under the erroneous byline of Lisandro Suero. The Washington Post, for example, published three photos under Suero's byline and one under Morel's. Morel's photos had also been featured on ABC, CBS, and CNN, and published in USA Today and the Boston Globe.

Morel hired a lawyer and began sending notices out that his copyright had been violated. AFP responded with a preemptive lawsuit [PDF] that contained a surprising argument: that because of Twitter's terms of use, the company was actually allowed to take pictures from Twitter for free. Twitter's terms of use allowed for broad re-use rights, and AFP said that “this broad re-use is evidenced every day when Twitter/TwitPic posts are copied, reprinted, quoted, and republished by third parties." Morel wanted to "inform the world of the disaster," and he did so using Twitter, argued AFP. Twitter did encourage the use of tweets by media in various forms, including broadcast and print journalism; and it warns users that their tweets may well be featured by the media.

Of course, Twitter also had terms of use making perfectly clear to users that "you own your content." That premise is still in its terms of service today, which read: "Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours—you own your Content (and your photos are part of that Content)."

Morel responded with a counter-claim for copyright infringement.

Today's opinion [PDF], authored by US District Judge Alison Nathan, makes clear that AFP can't rely on Twitter's terms for what it did with Morel's photos. "Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS," wrote Nathan.

She similarly disposed of AFP's argument that it is entitled to a "safe harbor" under the DMCA, because it doesn't fit the meaning of an "online service provider" under that act. Getty argued that because it just passively received photos from AFP, it should be off the hook, since it hadn't engaged in "volitional conduct"; the judge was unimpressed by that argument, too.

Some issues are still left for a jury to decide, assuming the case doesn't settle, including whether copyright was infringed willfully or not.

No 'massive' damages for photojournalist

Considering AFP's case looked like a real longshot, it's worth asking: why did the news agency not settle? In addition to the legal costs and risk of losing, there's a fair amount of PR pain in a global newswire fighting in court with a small-time photojournalist who got lucky on a big news day.

Part of the answer may lie in the damages section of today's order, which suggests that Morel was seeking a massive windfall from the case. Now, he may be on his way to winning the case, but he won't get anywhere near the sum he was looking for.

Morel had urged the court to find that every illegal reproduction of his photograph by all of Getty's and AFP's members was an individual infringement, entitling him to statutory damages under the DMCA, which would range from $2,500 to $25,000. That would entitle him to a minimum of $4,445,000, and up to more than $44,000,000. (Doing the math in reverse, that means Morel's lawyer found 1,778 instances of infringement.)

But Nathan found that AFP could only be liable once for each alleged "violative act," not every individual copy of a photo found anywhere. According to the judge's order, an AFP employee sent a total of eight Morel photos to the AFP photo desk; that would put the damages in a more limited universe of between $20,000 and $200,000. That amount is still far more than Morel could have possibly hoped to get had he managed to sell his photos on the day of the quake. Getty and The Washington Post, also defendants in the suit, may also have separate liability with similar ranges.

At this point, AFP should see that it clearly isn't going to win this case; and Morel should be able to see that he isn't going to become a millionaire because of AFP's mistake. After both parties take a breath and reduce their expectations, they may be able to reach a settlement.

It's become common for news agencies to feature all kinds of content found on Twitter in their articles and broadcasts. But this ruling suggests what behavior is clearly out of bounds. Distributing photos on a commercial basis—with an incorrect byline to boot—evidently falls in that category.

Joseph Baio, Morel's lawyer, told Reuters today that the case showed commercial news use of Twitter photos is illegal, and the trial will determine what the consequences should be.

Twitter was never a party to the case. A Twitter spokesman asked about the case today simply reiterated the company's policy, that "Twitter users own their photos."

Why isn't Lisandro Suero being tried? Is it just that he does not have big enough pockets to make it financially rewarding? If I was ADF, making him the scapegoat and being an honest recipient of stolen goods would be my defense.

It's hard to believe ADF went forward with that defense. Morel probably looked at the recording industry as his basis for going for the big win.

We now know if the corporation takes from you it is 'unreasonable' to expect a 'per copy' reward. You just get a flat fee per item.

If , however, you took from a corporation then it is perfectly reasonable for the corporation to expect a 'per copy' reward for your transgression.

Not really, you upload 20 songs, your on the hook for 20 counts of copyright infringement. Totaling a small amount of way too much money, to a large amount of too much money, but still only the $750 per to $150,000 per count.

ADF is on the line for 8 pictures and the same math works on them.

The RIAA has never actually tried to hit anyone with a case of 1 million counts of the same song, (that I'm aware of anyway) they just hit you with a couple dozen songs, since thats more then enough to bankrupt you and scare everyone else.

At least in this case, the photographer can show that he normally sells his photos for X amount, and being the only photographer with anyone worth showing for this, he could likely hit his best prices (or even set a new best price) per photo. Which since the Washington Post (among others) actually paid for these photos from someone, is actual countable monetary damages. At least a fairly valid way of counting damages.

The RIAA just alludes to the fact that they have lost millions because you personally uploaded the only copy of Taylor Swifts latest single, preventing them from buying a new boat.

We now know if the corporation takes from you it is 'unreasonable' to expect a 'per copy' reward. You just get a flat fee per item.

If , however, you took from a corporation then it is perfectly reasonable for the corporation to expect a 'per copy' reward for your transgression.

Not really, you upload 20 songs, your on the hook for 20 counts of copyright infringement. Totaling a small amount of way too much money, to a large amount of too much money, but still only the $750 per to $150,000 per count.

If you upload 1 song 20 times, you're still on the hook for 20 counts. But based on this ruling, the corporation would only be on the hook for 1 count.

Actually, the damages are in pretty much exactly the same range as damages in other copyright cases - Jammie Thomas originally was fined $9,250 per song, and Joel Tenenbaum $22,500 per song. Why do the damages look reasonable now, when they didn't before? The numbers are the same.

Perhaps the better question to ask is, "Why in the world are statutory damages defined the same against individuals as they are against corporations?"

Why isn't Lisandro Suero being tried? Is it just that he does not have big enough pockets to make it financially rewarding? If I was ADF, making him the scapegoat and being an honest recipient of stolen goods would be my defense.

Is he in the country? He probably is not within the courts jurisdiction.

The RIAA has never actually tried to hit anyone with a case of 1 million counts of the same song, (that I'm aware of anyway) they just hit you with a couple dozen songs, since thats more then enough to bankrupt you and scare everyone else.

The RIAA has never actually tried to hit anyone with a case of 1 million counts of the same song, (that I'm aware of anyway) they just hit you with a couple dozen songs, since thats more then enough to bankrupt you and scare everyone else.

The RIAA has never actually tried to hit anyone with a case of 1 million counts of the same song, (that I'm aware of anyway) they just hit you with a couple dozen songs, since thats more then enough to bankrupt you and scare everyone else.

I'd think the goal was to have -nobody- pay kajillions of dollars for copyright infringement, not simply to stick it to whatever-big-corporation in the name of napster users wronged.

I don't see why the liability in all this extends beyond the first unauthorized publishers, which sounds like AFP and Suero. And I don't like the burden this places on agencies that deal in material submitted by thousands of people, and the short leap between that and publishers in general.

What's to stop us short of having everyone's twitter pics trapped inside twitter somehow?

I would be very sympathetic to AFP and Getty. They basically got swindled by Lisandro Suero. They made an honest attempt to withdraw the photos once notified. If they had offered Morel normal compensation for his pictures, I would say they did the best they could.

However, once they turned around and sued him, all sympathy is gone. At that point they are essentially trying to use the legal system to steal his work.

I wonder what the victims have to say about all this money changing hands, that they won't see?

While I understand (being charitable) what you mean, how is that at all relevant to the lawsuit and judgement?

If you, instead, are coming from the trollish jerk perspective, consider that you're conflating journalism with exploitation and implying that the photographer was just there to make money off the tragedy.

The thing that bothers me about this judgement is what others have pointed out. Under the law we have people able to get $250,000 judgments against private individuals and the reasoning behind the law is that it is targeting commercial infringement. Now we have a case where it was exactly that and if anything this is the one company that should get hit with the maximum. Even on only 8 pictures that would amount to $2,000,000! This is what the law was supposed to do and stop and yet when the first real case I have heard of in a long time brings it up they slash the damages by 10x. I just don't get it be the little guy get the book thrown at you be the big guy get the calf gloves.

*on edit I want to put this out there I don't agree with the current damages I just hate the inequality of the law. IE this is what it is supposed to stop with an iron fist and even when it comes up they don't do it.

The joys of copyright law. By the way, does Ars Technica have the photographer's permission to publish those photos?

Notice they were careful to say "via court documents". Court documents are public domain.

So if the lyrics to, say, "Happy Birthday" were spoken and transcribed in a court of law, would that also be public domain? The court may not be personally chargeable with violating copyright on the pictures, but I find it dubious that court documents can kidnap any creative work into the public domain like that.

The joys of copyright law. By the way, does Ars Technica have the photographer's permission to publish those photos?

Notice they were careful to say "via court documents". Court documents are public domain.

So if the lyrics to, say, "Happy Birthday" were spoken and transcribed in a court of law, would that also be public domain? The court may not be personally chargeable with violating copyright on the pictures, but I find it dubious that court documents can kidnap any creative work into the public domain like that.

Yes and no if say the lyrics to happy birthday where in the court record you can reproduce that record but that is not the same as singing that song with the notes around a table at applebees. Since the images above are taken straight from the record they can indeed be posted if they are taken from the court record. Not to mention they are for news commentary which is protected under the constitution (how else would John Stewart be able to make a living). Since they where taken from the court record most likely they will be at a lower resolution that you wouldn't be able to print full sized. It might not make much since but at the same time it is true.

The joys of copyright law. By the way, does Ars Technica have the photographer's permission to publish those photos?

Notice they were careful to say "via court documents". Court documents are public domain.

So if the lyrics to, say, "Happy Birthday" were spoken and transcribed in a court of law, would that also be public domain? The court may not be personally chargeable with violating copyright on the pictures, but I find it dubious that court documents can kidnap any creative work into the public domain like that.

Yes and no if say the lyrics to happy birthday where in the court record you can reproduce that record but that is not the same as singing that song with the notes around a table at applebees. Since the images above are taken straight from the record they can indeed be posted if they are taken from the court record. Not to mention they are for news commentary which is protected under the constitution (how else would John Stewart be able to make a living). Since they where taken from the court record most likely they will be at a lower resolution that you wouldn't be able to print full sized. It might not make much since but at the same time it is true.

*grammar corrections on edit

(You missed one or two of those grammar issues).

So news commentary can use the photos? That seems to contradict the whole point of this case, which is all about the photographer having the right to say who can or can't use his work.

We now know if the corporation takes from you it is 'unreasonable' to expect a 'per copy' reward. You just get a flat fee per item.

If , however, you took from a corporation then it is perfectly reasonable for the corporation to expect a 'per copy' reward for your transgression.

Not really, you upload 20 songs, your on the hook for 20 counts of copyright infringement. Totaling a small amount of way too much money, to a large amount of too much money, but still only the $750 per to $150,000 per count.

If you upload 1 song 20 times, you're still on the hook for 20 counts. But based on this ruling, the corporation would only be on the hook for 1 count.

ATimson is right.

Also, the thing with stock photography is that it's often sold under different licenses which allow it to be used for different x number of times - eg. buying a license to use a photo 10 times if you're just going to use it on billboards, or a license for 100,000 times if you're printing it on all of your business cards, flyers, and other promotional materials.

So news commentary can use the photos? That seems to contradict the whole point of this case, which is all about the photographer having the right to say who can or can't use his work.

News commentary about the use of the photo can show the use of the photo the article is talking about. But when writing a news article about some event or person, the publishers don't automatically get the right to use any photo about that event or person. But eg. in the case of it being about a person, if they have the permission of the copyright holder, they can use a photo of that person without that person's consent.

Imagine yourself being an ethereal existence seeing from above us, humans, little things fighting each other for... whatever you could imagine. In this case, an earthquake causing this delirium, after the real tragedy. In between, as always, the money. Bloody hell...

Why is Getty being sued? Shouldn't they be protected by "we got the photos from AFP, on good faith we assumed that they had all copyright issues resolved" defense? It would be tedious, to say the least, to vet every photo they get from a 3rd party.

so if an individual steals copyrighted material for personal use with no financial gain, the damages in court are in the millions.

while a commercial enterprise steals copyrighted material and makes a profit, the damages in court are in the thousands.

yeah, this seems fair...

Based on TFA, the lower statutory damage amounts are due to different laws being sued about (DMCA vs. Copyright Act). It would be kind of nice if there was some explanation (or even reasonable speculation) about why he went after them for DMCA violations as opposed to Copyright violations...